Tucker v. Virginia State Bar

• Citation: 357 S.E.2d 525,233 Va. 526
• Decision Date: 12 June 1987
• Docket Number: No. 850920,850920
• Parties: Perry F. TUCKER, Jr. v. VIRGINIA STATE BAR. Record
• Court: Virginia Supreme Court

Page 525

357 S.E.2d 525

233 Va. 526

Perry F. TUCKER, Jr. v. VIRGINIA STATE BAR.

Record No. 850920.

Supreme Court of Virginia.

June 12, 1987.

Gerald G. Poindexter (Roland D. Ealey, Poindexter & Poindexter, Surry, on briefs), for appellant.

Peter R. Messitt, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., James T. Moore, III, Sr. Asst. Atty. Gen., Diane Langley, Asst. Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL, and THOMAS, JJ., and COCHRAN, Retired Justice.

RUSSELL, Justice.

In this appeal of right by an attorney from an order of disbarment, the central question is whether an excessive sanction was imposed.

The Virginia State Bar Disciplinary Board (the Board), after a hearing on August 15, 1985, found Perry F. Tucker, Jr., a member of the Virginia State Bar, guilty of two violations of the Disciplinary Rules of the Virginia Code of Professional Responsibility. The Board detailed its findings as follows:

Disciplinary Board Docket No. 85-17:

A. Ms. Aldonia Carrington first consulted Mr. Tucker on September 29, 1983, regarding a claim for child support. She was quoted a fee of $300 for Mr. Tucker's handling of a petition for child support and paid $200 by October 31, 1983.

B. Ms. Carrington called Mr. Tucker several times during December 1983 and January 1984 regarding the matter, but was unable to reach him because he had closed his office and disconnected his telephone without notification to his clients.

C. On the last occasion on January 30, 1984, she received a recording that the phone was no longer in service.

D. She subsequently filed a complaint with the Virginia State Bar in February 1984.

E. Mr. Tucker had in fact filed the petition for child support in December 1983 prior to the complaint being filed, and obtained a court date of April 4, 1984, for hearing the matter, but had not kept Ms. Carrington informed as to the delays in the court's trial docket or as to the filing of the petition.

F. In the meantime, Ms. Carrington obtained other counsel who assumed the handling of the matter. Mr. Tucker has not returned any portion of the fees paid to him by Ms. Carrington.

It is the opinion of the Board that such conduct by Perry F. Tucker, Jr. is misconduct in violation of Disciplinary Rule 6-101(C) of the Revised Code of Professional Responsibility effective October 1, 1983.

....

Disciplinary Board Docket No. 85-18:

A. Alice Braxton retained Perry F. Tucker, Jr. to represent her in a divorce and paid him a retainer of $135 by check dated September 14, 1982. Mr. Tucker prepared a Bill of Complaint on her behalf on November 5, 1982, and mailed a copy to Ms. Braxton but did not file the complaint until August 16, 1983. On August 17, 1983, Ms. Braxton paid Mr. Tucker the balance of his fee.

B. Depositions were scheduled in the divorce for September 24, 1983. Ms. Braxton went to Mr. Tucker's office on that date but Mr. Tucker was not in, the office was locked, and the depositions had to be cancelled. Ms. Braxton filed a complaint with the Virginia State Bar on September 30, 1983.

C. Mr. Tucker was informed of this complaint by letter dated December 6, 1983. On November 11, 1983, he had written to Ms. Braxton regarding the cancelled depositions, as to which he claimed to have confused the dates. However, no depositions were rescheduled until March 1984.

D. The final divorce decree was entered in May of 1984.

E. Ms. Braxton suffered no loss, but the matter was delayed beyond the normal time expected for this type of uncontested divorce. Ms. Braxton stated that on a number of occasions, she had been unable to reach Mr. Tucker by phone or in person, and in January of 1984, he closed his office without notification to his clients.

F. Mr. Tucker neglected to handle this legal matter in a timely fashion and failed to keep his client reasonably informed as to the status of the matter.

It is the opinion of the Board that such conduct by Perry F. Tucker, Jr. is misconduct in violation of Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility effective prior to October 1, 1983, and Disciplinary Rule 6-101(C) of the Revised Code of Professional Responsibility effective October 1, 1983.

At the hearing, Alice Davis Jones, formerly Alice Braxton, testified in support of the complaint she had made to the Bar. Aldonia Carrington, however, did not appear at the hearing. The facts relating to her complaint were primarily elicited from the testimony of Mr. Tucker, who was called as a witness by counsel for the Bar. Mr. Tucker made no objection to this procedure, and the record indicates that his attorney, who was present at the hearing, had agreed to it in advance.

At the conclusion of the evidence, the Board retired to deliberate. It then reconvened the hearing and announced that it had found the violations noted above to have been proved by clear and convincing evidence. The Board found that the Bar had failed to prove the allegations of a complaint by a third client against Mr. Tucker, and dismissed that complaint. The Board then inquired whether Mr. Tucker had ever been subjected to discipline by the Bar on any prior occasion. Mr. Tucker responded that he had been disciplined on three prior occasions: a 45-day suspension of his license in 1982 for the unauthorized alteration of a document "to make it clearer to an insurance adjuster"; a 90-day suspension in 1984 for charging an excessive fee and failing "to pick up a deed of trust in a real estate matter in which there was an alleged conflict of interest"; and a private reprimand in 1984 for failure to return overpaid real estate taxes to a client.

The Board again retired to deliberate, then reconvened and announced its decision to revoke Mr. Tucker's license. The Board based its decision upon the pattern demonstrated by repetitive violations of the disciplinary rules. The final order, entered September 19, 1985, set forth the Board's reasoning as follows:

The imposition of an appropriate sanction, once misconduct has been proved, is perhaps the most difficult task of the Disciplinary Board.

In the instant cases, it is true that the incidents of misconduct, if taken by themselves, might warrant something less than the sanction we feel obliged to impose.

However, these incidents of misconduct together with the fact that Mr. Tucker's license has on two prior occasions been suspended for similar violations, indicate a pattern that has developed over a considerable period of time. Unfortunately, Mr. Tucker's record in the short time that he has been at the bar indicates that regardless of any technical proficiency he may possess he is simply not able to competently practice law without causing injury to his clients.

In determining a disciplinary sanction, the Board must consider the public interest as well as the interests of the immediate parties. A suspension of the license to practice law, as has been done with Mr. Tucker previously, allows the respondent to resume the practice of law at the conclusion of the period of suspension. However, a revocation of the license to practice law requires the respondent to demonstrate his competence in an application for reinstatement before he would be able to resume his law practice.

Given Mr. Tucker's repeated misconduct after his prior suspensions expired, the Board feels that the public interest, the interests of the Respondent's clients, and the Respondent's business interest can only be served by an affirmative effort on the Respondent's part to earn once again the right to practice law in this Commonwealth.

Wherefore, it is the judgment of the Board that the license of Perry F. Tucker, Jr. to practice law in the Commonwealth of Virginia be Revoked.

After the Board's final order was entered, Mr. Tucker, represented by different counsel, filed with the Board a "Motion to Vacate Previous Order And To Reconsider." The motion raised three issues: (1) "Unduly harsh punishment, given the nature of the infractions found," (2) lack of due process in that "respondent was subpoenaed as a witness and compelled to, in effect, testify against himself ... and at the same time, without waiving his right, deprived of his right to confront and/or cross examine complaining witnesses ..." and (3) the Board acted improperly and arbitrarily in basing its penalty in part on Mr. Tucker's three previous violations of disciplinary rules.

The Board denied the motion by an order entered October 28, 1985, which noted that the Rules of Court which prescribe the Board's procedure contain no provision authorizing reconsideration of its final orders. ^* Mr. Tucker's appeal raises substantially the same issues as those in his post-hearing motion.

The complaint of lack of due process based on alleged self-incrimination and lack of confrontation is without merit. A proceeding to discipline an attorney is civil, not criminal in nature. Seventh District Committee v. Gunter, 212 Va. 278, 284, 183 S.E.2d 713, 717 (1971). Its purpose is to protect the public and to maintain the integrity of the Bar. Cummings v. Virginia State Bar, 233 Va. 363, ----, 355 S.E.2d 588, 591 (1987). None of the three complaints made against Mr. Tucker by his clients, which were the subject of the Board's hearings on August 15, 1985, alleged any wrongdoing which would constitute a crime. Therefore, the state and federal constitutional provisions granting protection against self-incrimination and providing the right to confront witnesses were inapplicable.

It is true, as Mr. Tucker argues on appeal, that our Rules, Pt. 6, § IV, Para. 13 C(5)(a), provide: "The attorney shall have the right to representation by counsel, to examine and cross-examine witnesses, to present evidence in his own behalf and to avail himself of the powers of the Board with respect to the attendance of witnesses and the production of documents." No contention was made at the hearing that any of these rights were...